The powers of the corporation cannot be enlarged by including provisions ostensibly bestowing them in the certificate of incorporation, if such powers are obnoxious to any applicable general law or to public policy. Costello v. Thomas Cusack Co., 96 N.J. Eq. 83 ( Ch. 1922), affirmed 94 N.J. Eq. 423 ( E. A. 1923); Terwilliger v. Graceland Memorial Park Ass'n, 35 N.J. 259 (1961); Oregon Railway Navigation Co. v. OregonianRailway Co., 130 U.S. 1, 9 S.Ct. 409, 32 L.Ed. 837 (1888); Bullard v. National Eagle Bank, 18 Wall 589, 85 U.S. 589, 21 L.Ed. 923 (1873); National Ass'n of C.P. Accountants v.United States, 53 App. D.C. 391, 292 F. 668 ( Ct. App. D.C. 1923); Hartnett v. Plumbers' Supply Ass'n, 169 Mass. 229, 47 N.E. 1002, 38 L.R.A. 194 ( Sup. Jud. Ct. 1897). Nor can they be expanded in such case by amendment of the charter or by adoption of bylaws with the assent of the stockholders.
The precise question presented — whether an amendment to a certificate, providing for the removal of a director without cause, as authorized by statute, enables the shareholders to remove a director without cause when the director had been elected prior to the amendment — is novel in this jurisdiction, because before the enactment of N.J.S.A. 14A:6-6 New Jersey common law had held that a director could never be removed without cause and without reasonable opportunity for a hearing. Costello v. Thomas Cusack Co., 96 N.J. Eq. 83 ( Ch. 1924). New York courts, however, faced with situations similar to the present one, have resolved the problem equitably and justly.
These two instruments create a contract not only between the corporation and the stockholders, but between the stockholders inter sese. Mayer v. Oxidation Products Co., Inc., 110 N.J. Eq. 141 ( Ch. 1932); Moore v. Conover, 123 N.J. Eq. 61 ( Ch. 1937); Grupe v. Rudisill, 101 N.J. Eq. 145 ( Ch. 1927); Loewenthal v. Rubber Reclaiming Co., 52 N.J. Eq. 440 ( Ch. 1894); Einstein v. Raritan Woolen Mills, 74 N.J. Eq. 624 ( Ch. 1908); Costello v. Thomas Cusack Co., 96 N.J. Eq. 83 ( Ch. 1924); 12 Fletcher, Cyclopedia Corporations 978; Leeds v. Harrison, 7 N.J. Super. 558 ( Ch. 1950). The fixing of the number of the board of directors at the annual meeting was, in view of the facts here present, not such an unusual or extraordinary transaction of business as would require special notice of intention in advance of the meeting.
Christiansen v. Local 680 of Milk Drivers, etc., 127 N.J. Eq. 215, 220 ( E. A. 1939); Haines v. Burlington County Bridge Commission, 1 N.J. Super. 163, 174 ( App. Div. 1949); Naylor v. Harkins, 11 N.J. 435, 446 (1953). Further see Costello v. Thomas Cusack Co., 96 N.J. Eq. 83, 90 ( Ch. 1924). But this rule and the exceptions to it are not to be looked upon as hard and fast and sharply defined in scope; rather they are but factors, among others, which must be weighed, one with another, all going to the exercise of an exacting judicial discretion as to whether or not to issue a preliminary injunction.